(SUMMARY: Tosfos explains why we need "Mishpat Echad", seeing as the basic D'rashah of D'rishah va'Chakirah is written by Eidim Zomemin, in Parshas Shoftim in connection with both Dinei Mamonos and Dinei Nefashos).

(b) Answer: Nevertheless, if not for "Mishpat Echad", we would not extend D'rishah va'Chakirah to other Dinei Mamonos (besides Eidim Zomemin).

2) TOSFOS DH 'SHE'LO TIN'OL DELES BIFENEI LOVIN'.

תוס' ד"ה 'שלא תנעול דלת בפני לווין ... '.

(SUMMARY: Initially assuming that Gezeilos va'Chavalos do not need D'rishah va'Chakirah, Tosfos goes on to explain why they might nevertheless require Mumchin even though Hodo'os and Halva'os don't. Then they retract, maintaining that they do need D'rishah va'Chakirah, and subsequently, explain why the Gemara later uses the term 'Kenasos' in this regard. Finally, they place Kesubas Ishah, the Dinim of inheritance and of gifts, and those of Nizkei Shor be'Shor in the same category as Hodo'os ve'Halvo'os in this regard).

(c) Answer #1: One does not need to worry about Mumchin regarding a Gazlan (like one does regarding Hoda'os ve'Halva'os) - since at the slightest excuse (such as the fear that he will not find expert Dayanim) a person will hold back from lending his friend money; Whereas Mumchin will not encourage the Gazlan to steal, because he knows that the owner of the stolen goods will take the trouble to look for Mumchin to deal with his claim until he finds them.

(f) Answer: 'K'nasos' is La'av Davka; In fact, Gezeilos va'Chavalos are also referred to as K'nasos, like we find later in the Perek, which states that were it not for R. Yehudah ben Bava, Dinei K'nasos would have become obsolete - whereas the Gemara is really referring to all matters that require three Dayanim.

(g) Conclusion: However, Kesubas Ishah, the Dinim of inheritance and of gifts, and those of Nizkei Shor be'Shor are included in Hodo'os ve'Halvo'os and all those that are listed in Perek ha'Chovel, we do their Shelichus and claim them in Bavel, and do not require Mumchin.

(h) Question: We find however many cases where they judgeed Gezeilos va'Chavalos in Bavel - such as in the second Perek of Bava Kama, by the case of a man who built a mansion on the trash-heap belonging to Yesomim, and by the case there of Chanan Bisha, who blew a trumpet into the ear of his 'friend', and in many other cases?

(j) Alternative Answer: Others explain that 'Gezeilos va'Chavalos' refers to Gezeilos that came about through Chavalos - where for example, two people who were fighting over something actually came to blows, until one of them stole something belonging to the other one. Such cases are uncommon in which case 'we do not do their Shelichus'.

(k) Question: How could they judge Dinei Gezeilos, and in 'Eizehu Neshech', how could they judge Dinei Ribis, when the Gemara at the beginning of 'ha'Gozeil Kama' rules that 'if Gazlanim and lenders of Ribis offer to pay, one is not permitted to accept from them?

(l) Answer: The Gemara there however, clearly states that that Mishnah was learned in the days of Rebbi, which means, as Rabeinu explains, that it applied only to his time (due to an episode that occurred then) and not before or afterwards ...

ולהכי לא פריך התם מכמה משניות אלא מברייתות ששנאן רבי לרבי חייא.

(m) Proof: ... which explains why the Gemara only queries Rebbi from Beraisos that he himself taught R. Chiya (and not from Beraisos or Mishnahs that were perhaps learned before or after that period).

3) TOSFOS DH 'ELA ME'ATAH, TA'U, LO YESHALMU

תוס' ד"ה 'אלא מעתה טעו, לא ישלמו'.

(SUMMARY: Tosfos disagrees with Rashi, who bases the Gemara's Kashya on logic, but rather that it asks on the basis of a 'Kal va'Chomer from Ne'ilas De'les. Then they explain the Gemara's Kashya, in light of the Gemara later that confines the obligation for the Dayan tp pay to there where he actually takes the money or object and hands it over to the claimant).

פירש בקונטרס, כיון דברשות קא עבדי, הוי שאינו מומחה כמומחה.

(a) Explanation #1: Rashi explains that seeing as they acted with permission, there is no difference between a non-Mumcheh and a Mumcheh.

(c) Explanation #2: The fact that the Gemara uses the Lashon 'Kol- she'Kein' implies that it is asking from the issue of 'Ne'ilas De'les' - that since you are worried about Ne'ilas De'les, we ought to say that it they erred, they are Patur, because if you obligate them to pay, they will not be willing to adjudicate in the firs place!

(d) Question: What is the problem, seeing as the Dayan is only Chayav to pay if he actually takes the money or object and hands it over to the claimant, as the Gemara will explain in 'Echad Dinei Mamonos'?

ויש לומר, דפריך למאן דמחייב בלא נטל ונתן.

(e) Answer: The Gemara is asking specifically according to those who render him Chayav even if he does not hand it over.

4) TOSFOS DH 'VE'OD SHEOSHAH SHELOSHAH LAMAH LI'?

תוס' ד"ה 'ועוד 'שלשה' ... 'שלשה' למה לי?'

איכא דוכתי דדייק הכי, ואיכא דוכתי דלא דייק.

(a) Comment: Sometimes the Gemara asks this question, and sometimes it doesn't.

5) TOSFOS DH 'U'MI'D'ORAYSA CHAD NAMI KASHER'.

תוס' ד"ה 'ומדאורייתא חד נמי כשר'.

(SUMMARY: Tosfos disagrees with Rashi, who establishes this statement according to those who hold 'Ein Eiruv Parshiyos Kasuv Ka'an').

פירש בקונטרס, דקסבר אין עירוב פרשיות כתיב כאן.

(a) Explanation #1: Rashi explains that this is because he holds Eiruv Parshiyos is not written here.

וקשה, דא"כ "בצדק תשפוט" למה לי?

(b) Question: In that case, why do we need the Pasuk "be'Tzedek Tishpot Amisecha"?

לכך נראה, דאפי' למאן דאית ליה עירוב פרשיות קאמר.

(c) Explanation #2: It would therefore seem that this goes even according to those who hold 'Eiruv Parshiyos' is written here.

6) TOSFOS DH 'I EFSHAR DE'LEIS B'HU CHAD DE'GAMIR'.

תוס' ד"ה 'אי אפשר דלית בהו חד דגמיר'.

(SUMMARY: Tosfos proves that a judge who is ignorant is not eligible to judge, even according to the Rabbanan of R. Meir, in whose opinion a litigant may only disqualify the judge picked by his disputant, if he can prove that he is a relative or Pasul).

(a) Clarification: Since whoever has not learned is disqualified from judging, as is from the Gemara in 'Zeh Borer', where the Gemara queries R. Meir in the Mishnah who authorizes each litigant to disqualify the judge chosen by his disputant, and answers that the Tana is speaking about the Syrian courts, which, according to Rashi, means that the judges were ignorant.

(b) Implied Question: But the Rabbanan argue with R. Meir their, and say that this is only if the litigant can prove that the his judge is a relative or that he was previously disqualified (but not otherwise)?

היינו דווקא בערכאות שנתמנו להיות דיינים.

(c) Answer: That is only once they have been appointed as court judges.

(a) Clarification #1: Here too, the Gemara's Kashya was based on 'Ne'ilas De'les' (See above DH 'ELA ME'ATAH') - since you are concerned about ignorant judges, the ruling ought to have been 'Ta'u Lo Yeshaleimu', in order not to distance those who are learned?

(b) Clarification #2: To which the Gemara answers 'Kol-she'Kein di'Nefishi!' - that is precisely why we make them pay, to force them to learn the Dinim of Mamonos in order not to err, lest they will then be obligated to pay.

8) TOSFOS DH 'LE'RAVA LEIS LEIH DI'SHEMUEL'.

תוס' ד"ה 'לרבא לית ליה דשמואל'.

(SUMMARY: Tosfos concurs with the B'hag, who rules like Shmuel. When the Gemara suggests, both in the second Perek of Kesuvos and later in Perek Zeh Borer, that the Rabbanan of bei Rav Ashi hold like Shmuel, implying that the Halachah is not like him, it is referring to two different rulings of Shmuel, not that of 'Shenayim she'Danu ... ').

(b) Question: But this is difficult from the Gemara in the second Perek of Kesuvos, which asks, with reference to 'Three judges who sat down to substantiate a Sh'tar' and one of them died' - 'Perhaps the Rabbanan of bei Rav Ashi hold like Shmuel'?, implying that the Halachah is not like him?

(c) Answer: What the Gemara there means is like Shmuel by Kiyum Sh'taros, where the Halachah is definitely not like him, since even Rav Nachman who concurs with Shmuel regarding 'Sdhenayim she'Danu ... ', concedes that Kiyum Sh'taros requires three judges, like the Gemara says in 'Chezkas ha'Batim'.

(d) Precedent: Similarly in 'Zeh Borer', regarding 'Sh'tar Odisa', where the Gemara suggests that perhaps the Rabbanan of bei Rav Ashi hold like Shmuel?, the Gemara is referring to Shmuel's ruling regarding 'Odisa', which one wrote in front of two Dayanim without a Kinyan, which is not Halachah, as the Gemara says there - 'before two with a Kinyan one writes (an Odisa), ot before three, even without a Kinyan', as the Gemara explains there (on Daf 29b).

9) TOSFOS DH 'NEZEK HAYNY CHAVALOS!'

תוס' ד"ה 'נזק היינו חבלות!'

(SUMMARY: After proving that the Gemara must be referring to Shor she'Hizik Adam, in which case the Chatzi Nezek to which it refers cannot go like R. Akiva, Tosfos retract, and establish it even by Shor she'Hizik Shor - which then goes even like R. Akiva).

(c) Retraction: On second thoughts however, it can even be speaking by Shor de'Azik Shor, bearing in mind the Gemara's conclusion there that it is only Nizkei Shein ve'Regel (which are Mu'ad from the beginning) that one can claim in Bavel, but not Nizkei Keren (about which it says 'Ein Mu'ad be'Bavel').

3b----------------------------------------3b

10) TOSFOS DH 'EIN DORSHIN TECHILOS'.

תוס' ד"ה 'אין דורשין תחילות'.

(SUMMARY: Tosfos proves that, contrary to rashi's explanation, 'Ein Dorshin Techilos' applies even where we do not need the first word to teach us anything. And they conclude by asking why the Gemara will shortly cite various cases where the first word teaches us a number, and nobody suggests 'Ein Dorshin Techilos').

פי' בקונטרס, משום דאיצטריך למומחין.

(a) Explanation #1: Rashi explains that this is because it is needed to teach us Mumchin.

(b) Question: But the Gemara concludes that everybody agrees that 'Ein Dorshin Techilos', and R. Yashiyah will say to you that if it (the first "Elohim") did not come to add one judge, then it ought to have written "el ha'Shofet". But how would we then know Mumchin, seeing as "Shofet" does not imply Mumchin, as Rashi himself explains - (and R. Yonasan) 'It is merely a Lashon (as people tend to say) 'Someone who has a Din Torah should go to the Dayanim and not to a Hedyot'?

(d) Precedent: And this is also implied regarding the Machlokes between R. Shimon and the Rabbanan on the following Daf in connection with "ba'Succos" "ba'Succos" "ba'Succos". According to one Lashon the Gemara in Succah, both opinions hold 'Yesh Eim le'Mesores', and they argue over 'Dorshin Techilos'. The understanding there is that 'S'chach' does not require a Pasuk, yet we remove one "ba'Succos" for itself, according to the opinion that does not Darshen Techilos, and do not use it for a number.

(e) Question: The question that one must ask however, is with regard to all the cases mentioned on the following Daf "Keranos" "Keranos" "Keranos" and "le'Totafos" "le'Totafos" "le'Totafos", all of which we Darshen for their numbers, and nobody there says 'Ein Dorshim Techilos'?

(a) Implied Question: But R. Yehudah himself in Perek ha'Chalil, in connection with the Shul of Alexandria of Mitzrayim, which had seventy-one gilt chairs, corresponding to the seventy-one elders of the Sanhedrin ha'Gadol?

(a) Clarification: The Pasuk must be talking about Dinei Nefashos, because it writes "Do not go after the majority for bad", implying something that is bad for all concerned - whereas in money matters, what is bad for one is good for the other.

(f) Alternative Explanation: Alternatively, the Pasuk must be referring to Dinei Nefashos, based on the D'rashah cited earlier (in connection with Dinei Nefashos) 'Your majority for the good is not like your majority for the bad', a statement which makes no sense regarding Dinei Mamonos, where, what is bad for one is good for the other!

(a) Question: At the beginning of 'ha'Mocher Peiros' Shmuel says that in money matters one does not follow the majority. Why does he not learn a K'al-va'Chomer from Dinei Nefashos, like R. Yashiyah does here?

(b) Suggested Answer: Perhaps the Din of Rov by Nefashos is confined to a visible Rov ('Ruba de'Isa Kaman', like here), but does not apply in the case of an invisible one ('Ruba de'Leisa Kaman' [which is actually a Chazakah]), which Shmuel is referring to.

(c) Refutation: This is incorrect, at the beginning of Perek Sorer u'Moreh it is implied that Rove applies by Dinei Nefashos across the board, such as 'Most women give birth at nine months' and 'Most people err regarding the birth of the New Moon'.

(d) Answer: We are therefore forced to say that the Rov that 'Most people purchase an ox for plowing (the case to which Shmuel is referring) is not as good a Rov as the aforementioned; therefore we do not rely on it with regard to Dinei Mamonos.

(a) Question: The Gemara's question that Sanhedrin ha'Gadol should comprise a hundred and forty-one is justifiable, since seventy-one is written in the Torah (as we will learn at the end of the Perek). But how can we justify the Gemara's question that Sanhedrin ha'Katan ought to comprise forty-five, seeing as the Torah only actually writes twenty, and no more, as we learned at the beginning of the Perek 'a congregation (ten judges) judges and a congregation saves'. Consequently, if twenty refers to the conclusion of the Din, then thirty-nine ought to suffice. (See Tosfos ha'Rosh).